The evidence relied on by the Defendants for the allegation of breach of an agreement

12.8 Although the Defendants had served written statements accompanied by notices under the Civil Evidence Act, in the result they called no evidence on this part of their plea of justification. They relied on the evidence given by and on behalf of Irving to establish their case.

12.9 In relation to the first issue, namely whether Irving violated an agreement with the Moscow archive, the Defendants' case, elicited from Irving and Millar in cross-examination, can be summarised as follows: Irving was keen to gain access to the diaries because (apart from the money and the kudos) he wanted the material for his biography of Goebbels. It is clear from his diary that on his first visit to Moscow Tarasov, on behalf of the archive, gave him access to the material, to read it and perhaps to copy some pages.

12.10 Irving's diary entry for the following day, 10 June 1992, records that he "illicitly borrowed the fiche we had found covering the weeks before the war broke out and took it out of the archives at lunch for copying. Irving recorded that he tucked the envelope with the glass plats into a hiding place before re-entering the archive. At the end of the afternoon, Irving took them to the Sunday Times photographer, who printed copies to be shown to Neil in London. The plates were returned to the archive the following morning. The defendants allege that this amounted to a breach of the agreement Irving had made with Tarasov.

12.11 On 11 June 1992, again according to Irving's diary, he removed by the same means two further plates from the archive. These plates were taken by Irving to Munich here they wer left in a safe (whilst Irving travelled to Rome). On his return he took them to London, where they were tested at Pilkington's laboratories. They were taken back to Moscow by a Sunday Times journalist on 2 July 1992 and replaced in the archive on the following day. This, according to the Defendants, constituted a further breach of agreement. Irving conceded that an historian would normally require the agreement of an archive before removing material. Irving had no such agreement. The most that Tarasov had originally agreed was that Irving could read the plates and perhaps copy them. On the second visit Tarasov agreed that Irving might remove two plates but that was in order to copy them. Millar, the Sunday Times journalist who accompanied Irving, acknowledged in evidence that Irving knew that he should not be taking the plates out of the archive and expressed his disapproval to Irving because doing so might jeopardise the chances of continuing access to the plates. Irving agreed that had not obtained permission to take the plates back to England.